Dutcher v. Howard

• Decision Date: 30 November 1896
• Citation: 15 Wash. 693,47 P. 28
• Parties: DUTCHER v. HOWARD.
• Court: Washington Supreme Court

47 P. 28

15 Wash. 693

DUTCHER v. HOWARD.

Supreme Court of Washington

November 30, 1896

Appeal from superior court, Skagit county; Henry McBride, Judge.

Action by J. W. Dutcher against Henry C. Howard. From a judgment for plaintiff, defendant appeals. Reversed.

Hoyt C.J., dissenting.

Million & Houser, for appellant.

Sinclair & Smith and George A. Joiner, for respondent.

DUNBAR J.

This is an action brought by appellant against respondent for damages, in the sum of $10,000, alleged to have been sustained by appellant by reason of certain wrongful acts of respondent in alienating the affections of appellant's wife, thereby causing appellant to be deprived of the comforting society of said wife, and causing his domestic relations to be broken up and destroyed, etc. The answer was a denial of the acts, and the cause proceeded to trial before a jury. At the close of plaintiff's testimony defendant moved for a nonsuit, on the ground of a total failure of proof, which motion was granted by the court. During the trial one Mrs. M. J. Larson testified on behalf of the plaintiff, and in her examination in chief she testified, over respondent's objection, to certain acts and transactions which had taken place between respondent and appellant's wife. This testimony was based upon what appellant's wife had told witness with reference to these matters. At the close of the examination in chief of this witness, counsel for the respondent moved to strike out all the testimony as to what was told witness by Mrs. Dutcher the appellant's wife, which motion was granted by the court. Thereupon, on cross-examination, counsel for the respondent proceeded to examine witness with reference to the same matters which had been eliminated from the case by the ruling of the court on respondent's motion. On the redirect examination the counsel for the appellant again went into the testimony called out by the respondent, carrying on the same line of inquiry on recross-examination that had been carried on by the cross-examination of the respondent. At the close of this witness' testimony respondent's counsel moved that all the testimony concerning the confession made to the witness, Mrs. Larson, as testified to by her, be stricken from the record. This motion was granted by the court, and the granting of said motion is assigned as error here.

We are satisfied, from the testimony in this case, that if the testimony of Mrs....